Summary: The Council is at fault for not securing a full-time education or delivering special education need provision to Mr X’s son when they moved to the area. The Council has acknowledged this fault and has agreed to apologise and pay a financial remedy to Mr X in line with the Ombudsman’s Guidance on Remedies. The Council also identified service improvements it has made in relation to education provision.

The complaint

1. Mr X complained the Council did not deliver education or SEN provision for his child when they moved to the area.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

4. I have considered Mr X’s complaint and have spoken to him about it.
5. I have also considered the Coucnl’s response to Mr X and to my enquiries.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Legislation and guidance

EHC Plan

7. A child or young person with special educational needs (SEN) may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or the council can do this.

Maintaining the EHC Plan

8. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)
9. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to:
• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement;
• check the provision at least annually during the EHC review process; and
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time.

Transfer of EHC Plan between councils

10. Where a child or young person moves to another council, the ‘old’ council must transfer the EHC Plan to the ‘new’ council. The ‘old’ council has to transfer the plan on the day of the move, or within 15 working days of the move if it did not have 15 days’ notice of the move.
11. The SEN Code of Practice says that if it would be impractical for the child to continue to attend the school named in the plan, the ‘new’ council “must place the child or young person temporarily at an appropriate educational institution” until it formally amends the plan. There is no timescale given for this, but the regulation says that from the “date of the transfer, the EHC plan is to be treated as if it had been made by the new authority…and must be maintained by the new authority”.

Alternative provision

12. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
13. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)

What happened

14. Mr X’s child has SEN and an EHC Plan. Y’s EHC Plan named a mainstream school.

Move to the area

15. On 14 November 2023, the council where Mr X lived with his son, Y, formally notified the Council (subject to this complaint) that the family were moving to the area on 25 November. The council transferred Y’s EHC Plan.
16. On 27 November, Mr X contacted the Council to say they are now living in the area and Y has no school place. He said that Y’s existing school setting is too far to reasonably travel to.

Consultation with schools

17. The Council asked Mr X which school his parental preference was before consulting all the mainstream primary schools in the area at the end of November.
18. The Council made a referral to arrange ‘exceptional provision’ for Y on 7 December 2023. The Council closed this referral before it was actioned as it secured a place for Y at a local primary school due to start on 15 January 2024. This school said it could offer Y a place but could not deliver his SEN provision.
19. Y did not start at the primary school on 15 January.

Alternative provision (AP)

20. Mr X secured an AP place for Y which the Council agreed. On 19 February, Y started at the AP setting. This was initially for one day a week which then increased to two after Easter and up to three when space was available, and Y was ready.

Therapy provision

21. The AP setting offered SALT on site. The AP provider confirmed in March 2024 that SALT and OT were not in place. The Council understood that Y was on the waiting list to receive SALT provision after Easter. The therapist visited Y in July 2024, but Y has not received any SALT since. The AP provider said it contacted Y’s named mainstream school to confirm it would be funding his SALT but received no response.
22. Y had an OT assessment in July 2024. Y is currently not receiving any therapy.

Mr X’s complaint

23. Mr X complained about the missed education and SEN provision. The Council acknowledged:
• The missed education between 18 December and 15 March
• Delayed access to SALT and OT identified in Y’s EHC Plan.
• The missed education due to the part time timetable.
24. The Council apologised and offered Mr X £1750 in recognition of the injustice caused to Y by the missed education and SEN provision.
25. At the time of my decision (October 2024), Y was still on a part time timetable and is not receiving SALT or OT provision.

My findings

Missed provision 27 November-15 December 2023

26. The Council did not ensure Y had a full time education and the provision in his EHC Plan when he moved to the area in November 2023. This was fault. The Council believed it had a duty to provide education within 15 days of Y moving to the area and and offered a remedy in recognition of the missed education from 18 December 2023.
27. The Council were given advanced notice of Y’s move to the area. The regulations place an immediate duty on the Council to secure education and the provision in the EHC Plan from the date Y moved to the area. The Council should have started looking from the point it knew about the transfer. This was fault and Y missed 3 weeks of provision between 27 November and 18 December. In line with the Ombudsman’s Guidance on Remedies and the Council’s existing remedy offer, the Council has agreed to pay a further £600 in recognition of the 3 weeks missed education.

Missed provision 18 December – 15 March

28. The Council has acknowledged it was at fault for this period of missed education and SEN provision. Although Y was on a part time timetable for some of this period, this did not amount to full time education. The Council has agreed to pay £1750 in recognition of this missed provision. The 15 March was the week the Council issued its stage 2 complaint response.

Missed provision 18 March – 25 October 2024

29. Since the Council’s stage 2 response, Y continued to receive 3 days a week AP and limited SEN provision. This is fault. The Council has agreed to remedy this period of missed provision in line with the Ombudsman’s Guidance on Remedies and the Council’s existing remedy offer. The Council has agreed to pay Mr X £1800 for the equivalent of 9 weeks missed education and SEN provision.

Ongoing missed provision

30. The Council has agreed to continue to make an equivalent payment (£200 per week) until Y receives a full time education and the SEN provision in his EHC Plan.

Agreed actions

31. Within 4 weeks of my decision, the Council has agreed to:
1. Apologise to Mr X for not securing full time education or delivering the SEN provision in Y’s EHC Plan.
2. Pay Mr X £4150 in recognition of the missed education and SEN provision between 27 November 2023 and 25 October 2024.
3. Continue to pay Mr X £200 a week until the Council has secured a full-time education and delivered the SEN provision contained in Y’s EHC Plan.

Back to top

Final decision

32. I have completed my investigation. The Council was at fault for failing to secure a full time education or SEN provision when Mr X and his son, Y moved to the area. The Council has agreed to remedy the missed education and SEN provision.

Back to top

Investigator's decision on behalf of the Ombudsman